Advancing the Ball

I have a working theory on the Viveca Novak subpoena. It started on an entirely different wavelength, but has morphed into something else entirely — which often happens, frankly, in the legal world. As we have very little in the way of factual basis to go on at this point, please keep in mind that this is speculation of the "by the truckload" variety.

V. Novak (no relation to Bob, according to Time, which has confirmed her subpoena and that it relates to Rove and Luskin) will be asked to testify regarding conversations that she had with Luskin (Rove’s attorney) beginning in May 2004. Jeralyn has more at TalkLeft, with quotes from some articles in which V. Novak shared a byline at Time.

When I read the article from the AP detailing that V. Novak was subpoenaed, my initial thought was that there might be a waiver issue with attorney/client privilege that Fitz might be trying to exploit. After extensive discussion with my lawyer hubby, and some research, however, I’ve decided that, although Luskin was close to a line on revealing privileged attorney information, he likely was doing so expressly at his client’s order, and there really wouldn’t be that sort of privilege issue there.

An attorney can comment on his opinions regarding impressions of the client, the client’s attitude, etc., without breaching the privilege issue. Whether that is advisable is a whole other issue, in terms of defense strategy, but it doesn’t open the floodgates in terms of allowing the prosecutor to break into priveleged conversations.

My theory then evolved to one of Luskin providing comments which corroborate criminal conduct on the part of Rove, and that Fitz may want to use those in some way. From Jeralyn’s posting of the V. Novak July 25th excerpt:

And all the while, Rove’s defenders were artfully pivoting from saying he hadn’t done anything to saying he hadn’t done anything wrong, that Plame wasn’t really a secret agent anyway, or if she was, Rove didn’t know that, or if he did, he only brought her up because he was trying to keep reporters from writing a bad story based on Wilson’s false charges, and besides, it was a reporter who blew Plame’s cover to him in the first place and not the other way around.

While I do think that it is tenuous that a judge would allow Fitz to break that attorney/client relationship by forcing Luskin to become a witness against Rove, it is possible that this could be a tactic in terms of forcing Rove’s hand and applying pressure.

And, if this information is material to some aspect of the charges, then it is highly possible that Fitz could attempt just that. (Especially if Luskin blathered on in detail about "finding" that e-mail of Rove’s to Hadley, or something else that is fact-specific and material to Fitz’s case.)

Luskin could not be forced to testify as to what Rove told him, or any evidence Rove provided to him one way or the other, but he could be asked whether or not specific quotes made by him to a reporter were accurate and his statements, and things along those lines. It would be circumstantial in some parts, but perhaps corroborating evidence nonetheless.

And then, I thought about some tactics that I had experienced in a white collar crime case several years ago that I was defending, early in my lawyer career, when I represented criminals on appointment in Federal Court (before I switched hats and started sending them to jail). It didn’t happen with my client, but with someone tangentially involved in the matter, but it was enough of an astute pressure tactic that it stuck in my memory, so I did a bit of research and…BINGO!

Prosecutors say that they usually do not seek to learn what advice a lawyer provides to a client, but are trying only to learn the facts. In an interview in 2003, James B. Comey, a former United States attorney, said, "They are just seeking the facts, including factual attorney work product." Lawyers for former KPMG partners have already excoriated the firm’s cooperation and, in particular, its acknowledgment of wrongdoing, contending that the firm did not undertake a thorough internal investigation to justify such a statement. (The statement is unlikely to be admitted in evidence in the criminal case against the former partners, though, lawyers said, and, in any event, it does not identify specific wrongdoers.)

Robert S. Bennett, whose firm, Skadden Arps Slate Meagher & Flom, helped persuade prosecutors not to indict KPMG, responded that KPMG could have been destroyed if it had been indicted, and that would have hurt far more people than the eight former partners named in the indictment.

Do a couple of names look familiar in that quote? Yeah, these guys get around — attorneys may be a dime a dozen in some areas, but high profile attorneys who do their jobs well are rare, and they make the rounds of the big cases because they earn every penny of their fees and then some.

In this particular article from the white collar crime defense bar website, the author is lamenting the chilling effect that breaches of attorney/client privilege can have in terms of advice given and advice held back to clients. (And he should — it’s a fine line to walk.)

But in the case of Luskin and Rove, the constant barrage of public statements from Luskin had a number of potential meanings: jury pool opinion shaping, getting out in front of a potentially politically devastating story, pointing a finger at others to attempt to shift blame and charges elsewhere…and possibly an attempt to obstruct justice.

In doing so, has Luskin overstepped on behalf of his client? Were they, indeed, trying to obstruct? Or did Luskin make an admission that is tantamount to corroborating information that Rove’s conduct may have violated the Espionage Act or some other statute? (See my post here for statutory details on potential charges.)

My guess is that Fitz is being as careful as we have all felt he was in terms of whether to bring charges or not. In his own words at the Libby indictment press conference, Fitzgerald said:

And all I’ll say is that if national defense information which is involved because her affiliation with the CIA, whether or not she was covert, was classified, if that was intentionally transmitted, that would violate the statute known as Section 793, which is the Espionage Act.

That is a difficult statute to interpret. It’s a statute you ought to carefully apply.

I think there are people out there who would argue that you would never use that to prosecute the transmission of classified information, because they think that would convert that statute into what is in England the Official Secrets Act.

Let me back up. The average American may not appreciate that there’s no law that’s specifically just says, "If you give classified information to somebody else, it is a crime."

There may be an Official Secrets Act in England. There are some narrow statutes, and there is this one statute that has some flexibility in it.

So there are people who should argue that you should never use that statute because it would become like the Official Secrets Act.

FITZGERALD: I don’t buy that theory, but I do know you should be very careful in applying that law because there are a lot of interests that could be implicated in making sure that you picked the right case to charge that statute.

That actually feeds into the other question. When you decide whether or not to charge someone with a crime, you want to know as many facts as possible. You want to know what their motive is, you want to know their state of knowledge, you want to know their intent, you want to know the facts.

Christy Hardin Smith

Christy is a "recovering" attorney, who earned her undergraduate degree at Smith College, in American Studies and Government, concentrating in American Foreign Policy. She then went on to graduate studies at the University of Pennsylvania in the field of political science and international relations/security studies, before attending law school at the College of Law at West Virginia University, where she was Associate Editor of the Law Review. Christy was a partner in her own firm for several years, where she practiced in a number of areas including criminal defense, child abuse and neglect representation, domestic law, civil litigation, and she was an attorney for a small municipality, before switching hats to become a state prosecutor. Christy has extensive trial experience, and has worked for years both in and out of the court system to improve the lives of at risk children.